State v. Marshall

18 Citing cases

  1. State v. Merrill

    242 Iowa 1156 (Iowa 1951)   Cited 10 times
    In State v. Merrill, 242 Iowa 1156, 1160, 49 N.W.2d 547, this court was confronted with factual conditions similar to those presented in the case at bar, and we there quoted this from State v. Marshall, 206 Iowa 373, 220 N.W. 106: "* * * the evidence must justify the submission of the included offense [also] that where, under the evidence, the defendant is clearly guilty of the offense charged, or not guilty at all, it is not error to fail to give instructions with reference to included offenses."

    " In State v. Marshall, 206 Iowa 373, 220 N.W. 106, defendant was charged with, and convicted of, larceny from the person. A request for an instruction on the included offense of larceny was refused.

  2. State v. Hawkins

    203 N.W.2d 555 (Iowa 1973)   Cited 20 times
    Abandoning the strict statutory approach for an evidentiary-based approach

    We now believe and hold the dissenting opinion expresses the sounder view. The dissent rightly cites State v. Marshall, 206 Iowa 373, 220 N.W. 106, as authority for the proposition the evidence of the case must be considered in determining whether one offense is includable within another. "* * *

  3. State v. Davis

    236 Iowa 740 (Iowa 1945)   Cited 8 times

    With this contention we cannot agree. We held in State v. Marshall, 206 Iowa 373, 376, 220 N.W. 106, 107, that larceny is an included offense in the charge of larceny from the person. We there stated as follows:

  4. State v. Habhab

    209 N.W.2d 73 (Iowa 1973)   Cited 24 times
    Noting that the state's definition of "included offenses" had never referred to a requirement of a lesser penalty and its prior holdings negative any inference that the possible penalty was material to the determination

    One argument should be discussed separately. Under section 204.20(5), The Code, 1971, the penalty for possession of narcotics held for sale was the same as that prescribed for the sale of narcotics. It is suggested the offense could not be "lesser" if the penalty were not lesser. Our definition of included offenses, such as the one given in State v. Marshall, 206 Iowa 373, 220 N.W. 106, has never made reference to a requirement of a lesser penalty. Our previous holdings negative any inference the possible penalty for a criminal violation is in any way material to a determination of whether one offense is included within another.

  5. Schmuck v. United States

    489 U.S. 705 (1989)   Cited 1,170 times   6 Legal Analyses
    Holding that "routine" mailings that occurred "after the fraud [had] come to fruition" were part of the execution of the defendant's fraudulent scheme because the fraud was not a "'one-shot' operation," but an "ongoing fraudulent venture"

    "To be `necessarily included' in the offense charged, the lesser offense must not only be part of the greater in fact, but it must be embraced within the legal definition of the greater as a part thereof." See also State v. Marshall, 206 Iowa 373, 375, 220 N.W. 106 (1928); People ex rel. Wachowicz v. Martin, 293 N.Y. 361, 364, 57 N.E.2d 53, 54-55 (1944). This Court's decision in Stevenson v. United States, 162 U.S. 313 (1896), reflects the "practically universal" practice.

  6. State v. West

    924 N.W.2d 502 (Iowa 2019)   Cited 8 times
    Concluding that convictions for involuntary manslaughter by commission of a public offense and delivery of a controlled substance did not merge

    Our older cases relied on an elements test similar to that enunciated in Blockburger , 284 U.S. at 304, 52 S.Ct. at 182. See State v. Marshall , 206 Iowa 373, 375, 220 N.W. 106, 106 (1928). In State v. Everett , 157 N.W.2d 144, 148โ€“49 (Iowa 1968), we cited Marshall as authority in applying an elements test in determining that operation of a motor vehicle without the ownerโ€™s consent was not a lesser included offense of larceny of a motor vehicle.

  7. State v. Young

    293 N.W.2d 5 (Iowa 1980)   Cited 16 times
    In Young, we determined that terrorism, delineated in section 708.6(1), The Code, is a forcible felony as that term is defined in the Code. Previously, this court decided that attempted murder is also included within the Code definition of forcible felony.

    An offense is necessarily included in another if "the minor offense is necessarily an elementary part of the greater." State v. Marshall, 206 Iowa 373, 375, 220 N.W. 106, 106 (1928). If the minor offense is so included, "the major offense cannot be committed without also committing the minor offense."

  8. State v. Johnson

    291 N.W.2d 6 (Iowa 1980)   Cited 24 times
    Holding assault while participating in a felony is a lesser-included offense of third-degree sexual abuse

    Instead, the determination depends on whether "the minor offense is necessarily an elementary part of the greater." State v. Marshall, 206 Iowa 373, 375, 220 N.W. 106, 106 (1928) (emphasis supplied). This distinction can be illustrated by examining the relationship between rape and assault with intent to commit rape as those offenses were defined prior to the criminal code revision.

  9. State v. Billings

    242 N.W.2d 726 (Iowa 1976)   Cited 7 times

    Specifically it argues "daytime" is an element of the breaking and entering offense not included in the elements of burglary. The principle involved in determining when an offense is necessarily included in another within the meaning of ยง 785.6 was explained in State v. Marshall, 206 Iowa 373, 375, 220 N.W. 106 (1928), as follows: "Every crime charged consists of certain specific elements, and if, from the elements of the crime charged, certain elements thereof may be taken, thereby leaving the necessary elements of another crime, the latter would be an included offense.

  10. State v. Franklin

    163 N.W.2d 437 (Iowa 1968)   Cited 29 times
    In State v. Franklin, supra, 163 N.W.2d at page 441, we said, "Ordinarily matters not raised in the trial court, including constitutional questions, cannot be effectively asserted the first time on appeal * * *."

    State v. McCall, 245 Iowa 991, 997, 63 N.W.2d 874, 877, deals with the subject matter at hand, and we there stated: "The rule is that two factors must combine to require the submission to the jury of the included offense: (1) The so-called included offense must be necessarily included in the offense charged, and (2) the record must contain evidence justifying a finding by the jury of such included charge, rather than of some higher offense." In State v. Merrill, 242 Iowa 1156, 1160, 49 N.W.2d 547, this court was confronted with factual conditions similar to those presented in the case at bar, and we there quoted this from State v. Marshall, 206 Iowa 373, 220 N.W. 106: "* * * the evidence must justify the submission of the included offense [also] that where, under the evidence, the defendant is clearly guilty of the offense charged, or not guilty at all, it is not error to fail to give instructions with reference to included offenses." There follows this conclusion: "Applying these established legal principles to the facts * * *, we think the trial court, by submitting the included offense of robbery without aggravation, gave appellants, to say the least, all that they were entitled to."